Citation Nr: 0726614
Decision Date: 08/24/07 Archive Date: 08/29/07
DOCKET NO. 06-02 106 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Phoenix,
Arizona
THE ISSUES
1. Entitlement to service connection for a back disability.
2. Entitlement to an effective date earlier than March 20,
2003 for the grant of service connection for bilateral
hearing loss.
3. Entitlement to an effective date earlier than March 20,
2003 for the grant of service connection for tinnitus.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
L. Jeng, Associate Counsel
INTRODUCTION
The veteran had active duty from July 1958 to November 1961,
from January 1963 to August 1963. This matter comes before
the Board of Veterans' Appeals (Board) from a September 2003
rating decision. In April 2007, the veteran appeared at a
hearing at the RO before the undersigned.
The issue of service connection for a back disability is
addressed in the REMAND portion of the decision below and is
REMANDED to the RO via the Appeals Management Center (AMC),
in Washington, DC.
FINDINGS OF FACT
1. The veteran's initial claim for service connection for
bilateral hearing loss was filed at the RO on March 20, 2003,
more than one year after his separation from active service.
Service connection for bilateral hearing loss was
subsequently granted, effective March 20, 2003.
2. The veteran's initial claim for service connection for
tinnitus was filed at the RO on March 20, 2003, more than one
year after his separation from active service. Service
connection for tinnitus was subsequently granted, effective
March 20, 2003.
CONCLUSIONS OF LAW
1. The requirements for an effective date earlier than March
20, 2003, for the grant of service connection for bilateral
hearing loss have not been met. 38 U.S.C.A.
§§ 5103, 5103A, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.102,
3.159, 3.400 (2006).
2. The requirements for an effective date earlier than March
20, 2003, for the grant of service connection for tinnitus
have not been met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5110
(West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.400 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA), codified
in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002),
and the pertinent implementing regulation, codified at 38
C.F.R. § 3.159 (2006), provides that VA will assist a
claimant in obtaining evidence necessary to substantiate a
claim but is not required to provide assistance to a claimant
if there is no reasonable possibility that such assistance
would aid in substantiating the claim. It also requires VA
to notify the claimant and the claimant's representative, if
any, of any information, and any medical or lay evidence, not
previously provided to the Secretary that is necessary to
substantiate the claim. As part of the notice, VA is to
specifically inform the claimant and the claimant's
representative, if any, of which portion, if any, of the
evidence is to be provided by the claimant and which part, if
any, VA will attempt to obtain on behalf of the claimant. In
addition, VA must also request that the claimant provide any
evidence in the claimant's possession that pertains to the
claim.
In the present case, the veteran was provided with the notice
required by the VCAA by an August 2004 letter. The RO
specifically informed the veteran of the evidence required to
substantiate his claims, the information required from him to
enable VA to obtain evidence on his behalf, the assistance
that VA would provide to obtain evidence on his behalf, that
he should submit such evidence or provide VA with the
information necessary for VA to obtain such evidence on his
behalf, and to submit any evidence in his possession
pertaining to his claims. He was also notified of the type
of evidence necessary to establish disability ratings and
effective dates for the disabilities on appeal as outlined in
Dingess v. Nicholson, 19 Vet. App. 473 (2006). Therefore, the
Board finds that he was provided with the notice required by
the VCAA.
Moreover, all available evidence pertaining to the veteran's
claim has been obtained. The record before the Board
contains VA examination reports. Neither the veteran nor his
representative has identified any additional pertinent
evidence that could be obtained to substantiate his claims.
The Board is also unaware of any such evidence. Therefore,
the Board is satisfied that VA has complied with its duty to
assist the veteran in the development of the facts pertinent
to the claims.
The record also reflects that the originating agency
readjudicated the veteran's claim following the provision of
the required notice and the completion of all indicated
development of the record.
Analysis
The effective date for the grant of service connection based
on an original claim, a claim reopened after final
disallowance, or a claim for increase is either the day
following separation from active service or the date
entitlement arose if the claim is received within one year
after separation from service; otherwise it will be the date
of receipt of the claim or the date entitlement arose,
whichever is the later. 38 U.S.C.A. § 5110(b)(1); 38 C.F.R.
§ 3.400(b).
A claim is a formal or informal communication, in writing,
requesting a determination of entitlement or evidencing a
belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p).
Any communication or action, indicating an intent to apply
for one or more benefits under the laws administered by VA,
from a claimant, his duly authorized representative, a Member
of Congress, or some person acting as next friend of a
claimant who is not sui juris, may be considered an informal
claim. Such an informal claim must identify the benefit
sought. Upon receipt of an informal claim, if a formal claim
has not been filed, an application form will be forwarded to
the claimant for execution. If received within one year
after the date it was sent to the claimant, it will be
considered filed as of the date of receipt of the informal
claim. 38 C.F.R. § 3.155; Norris v. West, 12 Vet. App. 413,
421 (1999).
The veteran filed his claim for service connection for
hearing loss and tinnitus on March 20, 2003, which is more
than one year after his separation from active service in
August 1963. Where a claim has been filed more than one year
after the date of separation from service, the effective date
of service connection is the date of the receipt of the
claim, or the date entitlement arose, whichever is later. 38
C.F.R. § 3.400(b). Here, the first indication of hearing
loss and tinnitus in the record is the August 2003 VA
examination thus, the later date is the date entitlement
arose. However, in this case, the veteran has already been
granted an effective date of the date of receipt of the
claim, which is earlier than what he is legally entitled. It
is also significant that while the disability in this case
may have existed for several years, a claim must be filed in
order for any type of benefit to be paid. Jones v. West, 136
F.3d 1296, 1299 (Fed. Cir. 1998).
With regard to whether an informal or formal claim, or
written intent to file claims for service connection for
bilateral hearing loss and tinnitus were filed prior to March
20, 2003, the Board finds no evidence of there being such a
claim.
In this case, the veteran has been granted an effective date
of service connection for hearing loss and tinnitus as of the
receipt of the veteran's claim on March 20, 2003. There is
no legal entitlement to an earlier effective date.
As the preponderance of the evidence is against the claim for
an earlier effective date of service connection for hearing
loss and tinnitus, the benefit-of-the-doubt rule does not
apply, and the claim must be denied. 38 U.S.C.A. § 5107(b);
Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
ORDER
An effective date earlier than March 20, 2003 for the grant
of service connection for bilateral hearing loss is denied.
An effective date earlier than March 20, 2003 for the grant
of service connection for tinnitus is denied.
REMAND
At his April 2007 hearing, the veteran testified that after
service, he received treatment for his back disability from
VA Medical Centers (VAMC) in San Francisco, California
(1960's to 1970's) and Reno, Nevada (September 1970 to
September 1977). As those records have not been associated
with the claims folder, the RO should attempt to obtain those
treatment records. 38 C.F.R. § 3.159(c)(2) (West 2002); Bell
v. Derwinski, 2 Vet. App. 611 (1992).
Accordingly, the case is REMANDED for the following action:
1. An appropriate official at the RO
should request records from the VAMCs
in San Francisco, California from1960's
to 1970's and Reno, Nevada from
September 1970 to September 1977. All
efforts to obtain VA records should be
fully documented, and the VA facilities
must provide a negative response if
records are not available.
2. Then, after ensuring any other
necessary development has been
completed, readjudicate the veteran's
claim for service connection for a back
disability. If action remains adverse
to the veteran, provide the veteran and
his representative with a supplemental
statement of the case and allow an
appropriate opportunity to respond.
Thereafter, the case should be returned
to the Board.
The appellant has the right to submit additional evidence and
argument on the matter the Board has remanded. Kutscherousky
v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006).
______________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs